(4) “Limited license” means a license that authorizes a vendor to issue, sell or offer for sale portable electronics insurance coverage.
(5) “Location” means a physical location in this state or a website, call center site or similar electronic or telephonic location where portable electronics may be purchased or leased.
(6) “Person” means an individual, partnership, corporation, incorporated or unincorporated association, joint stock company or any similar entity or combination of entities acting in concert.
(7) “Portable electronics” means an electronics device that is portable and includes accessories and services, including but not limited to wireless services, related to use of the device.
(8)(a) “Portable electronics insurance coverage” means insurance that provides coverage for the repair or replacement of portable electronics in the event of loss, theft, inoperability due to mechanical failure, malfunction, damage or need for repair or replacement as a result of some other covered source of peril.
(b) “Portable electronics insurance coverage” does not include:
(A) A service contract as defined in ORS 646A.152 that is governed by ORS 646A.150 to 646A.172;
(B) A warranty;
(C) A maintenance agreement as defined in ORS 646A.152; or
(D) A policy of insurance covering the obligations of a vendor or of a portable electronics manufacturer under a warranty.
(9) “Supervising entity” means an insurer as defined in ORS 731.106, or an insurance producer as defined in ORS 731.104, that may or may not issue, sell or offer for sale policies of portable electronics insurance to vendor policyholders.
(10) “Vendor” means a person engaged in the business of selling or leasing or offering for sale or lease portable electronics.
(11) “Vendor policyholder” means a vendor that holds a limited license under ORS 646A.577 and that has been issued a policy by an insurer or a supervising entity pursuant to which the vendor may issue, sell or offer for sale portable electronics insurance coverage to customers. [2011 c.393 §1]
646A.577 Limited license required; application; fee; renewal; prohibited representations. (1) A vendor may not issue, sell or offer for sale portable electronics insurance coverage unless the vendor has been issued a limited license by the Department of Consumer and Business Services under this section.
(2)(a) An application for a limited license under this section must be submitted on a form in accordance with paragraph (b) of this subsection and accompanied by a fee as prescribed by the department by rule.
(b) The application must, at a minimum, include:
(A) The name and street address of an employee, agent or authorized representative of the vendor who is the person designated by the vendor as being responsible for the vendor’s compliance with ORS 646A.575 to 646A.590; and
(B) The name and address in this state of a person designated by the vendor as the vendor’s agent upon whom may be served, in the manner described in ORS 59.155, at any time any process, notice or demand in a civil proceeding brought in connection with portable electronics insurance coverage, including a proceeding brought by the Director of the Department of Consumer and Business Services.
(c) A vendor licensed under this section shall annually update the contact information provided to the department under paragraph (b) of this subsection.
(3)(a) A limited license issued under this section is valid for two years unless suspended or revoked by the department.
(b) A limited license may be renewed upon expiration for another two-year period upon application of the vendor and payment of a fee as prescribed by the department by rule.
(4) A vendor licensed under this section may not advertise, represent or otherwise hold itself out as being licensed to sell any other type of insurance unless the vendor is actually licensed under the laws of this state to sell the other type of insurance. [2011 c.393 §2]
646A.580 Cost of coverage; billing requirements; remission to insurer or supervising entity; funds held in trust; compensation. (1) A vendor policyholder may bill and collect the cost of portable electronics insurance coverage purchased by an enrolled customer. Any charge to the enrolled customer for coverage that is not included in the cost to the enrolled customer to purchase or lease portable electronics must be separately itemized in writing. If the coverage is included with the purchase or lease of portable electronics, whether or not the coverage is included in the cost to the enrolled customer of the purchase or lease of the portable electronics, the vendor policyholder shall clearly and conspicuously disclose in writing to the enrolled customer that the coverage is included with the purchase or lease of the portable electronics.
(2) If authorized by an insurer or a supervising entity, a vendor policyholder that bills and collects the cost of portable electronics insurance coverage from an enrolled customer is not required to deposit the amount paid in a segregated account but shall remit the amount collected to the insurer or the supervising entity within 60 days of receipt from the enrolled customer.
(3) Moneys collected by a vendor policyholder from an enrolled customer for the cost of portable electronics insurance coverage are funds held by the vendor policyholder in trust for the benefit of the insurer or the supervising entity.
(4) A vendor policyholder may receive compensation from an insurer or a supervising entity for billing and collecting the cost of portable electronics insurance coverage purchased by enrolled customers.
(5) Vendor policyholders, insurers and supervising entities are not subject to ORS 744.083 and 744.084. [2011 c.393 §3]
646A.582 Written disclosure requirements. A vendor policyholder shall make available to prospective customers of portable electronics written materials that disclose:
(1) That portable electronics insurance coverage may duplicate coverage already held by the customer, including but not limited to homeowner’s insurance or renter’s insurance;
(2) That issuance of portable electronics insurance coverage is not required for the customer to purchase or lease portable electronics;
(3) The material terms of coverage, including but not limited to:
(a) The identity of and contact information for the insurer or the supervising entity that issued the insurance policy to the vendor policyholder;
(b) The amount of any applicable deductible and how the deductible is required to be paid when a claim is made;
(c) The benefits of coverage; and
(d) Whether the covered portable electronics will be repaired or replaced with a similar make and model, with a new or reconditioned device, accessory or part, or with a device, accessory or part from other than the original manufacturer;
(4) The process and requirements for returning portable electronics, and any fees that will apply in the event the enrolled customer does not comply with the process and requirements; and
(5) That the enrolled customer may cancel the portable electronics insurance coverage at any time and that the person paying the premium shall receive a refund of the unused portion of any amount that has been paid for coverage. A reasonable administrative fee may be charged in an amount not to exceed 10 percent of the refund due. [2011 c.393 §4]
646A.585 Exceptions to license requirement; prohibited representations; acts of employees. (1) An employee, agent or authorized representative of a vendor policyholder may issue, sell or offer for sale portable electronics insurance coverage to a customer without obtaining a limited license under ORS 646A.577 if:
(a) The vendor policyholder has been issued a limited license under ORS 646A.577; and
(b) The insurer or the supervising entity that issued a policy of portable electronics insurance to the vendor policyholder develops a training program for employees, agents and authorized representatives of the vendor policyholder that:
(A) Is completed by employees, agents and authorized representatives of the vendor policyholder who are directly engaged in the issuing, selling or offering for sale of portable electronics insurance coverage to customers;
(B) Includes basic instruction about portable electronics insurance coverage and the disclosures required under ORS 646A.582; and
(C) If delivered electronically, includes a supplementary education program that is conducted and overseen by employees of the insurer or the supervising entity.
(2) An employee, agent or authorized representative of a vendor policyholder who is authorized to issue, sell or offer for sale portable electronics insurance coverage under this section may not advertise, represent or otherwise hold themselves out as holding a limited license under ORS 646A.577 or being a licensed insurer or insurance producer as those terms are defined in ORS 731.104 and 731.106 unless the employee, agent or authorized representative has been issued a limited license or is licensed as an insurer or insurance producer under the laws of this state.
(3) The acts of an employee, agent or authorized representative of a vendor policyholder who is authorized to issue, sell or offer for sale portable electronics insurance coverage under this section are deemed to be the acts of the vendor policyholder for purposes of ORS 646A.575 to 646A.590. [2011 c.393 §5]
646A.588 Restrictions on modification or termination of coverage; notice; consent to notice. (1) Except as provided in subsections (2) and (3) of this section, an insurer or a supervising entity that issued a policy of portable electronics insurance to a vendor policyholder may not modify or terminate the terms and conditions of the policy unless the insurer or the supervising entity:
(a) Provides the vendor policyholder and enrolled customers with notice of the modification or termination not less than 60 days before the effective date of the modification or termination; and
(b) In the event of a modification only, provides:
(A) The vendor policyholder with a revised policy or endorsement that is evidence of the modification; and
(B) Each enrolled customer with a revised certificate, endorsement or other evidence of a change in terms and conditions, updated written materials and a summary of the material changes to the terms and conditions of coverage.
(2)(a) An insurer or a supervising entity may terminate an enrolled customer’s portable electronics insurance coverage:
(A) Upon discovering fraud or a material misrepresentation the enrolled customer made in obtaining the coverage or in presenting a claim; or
(B) For nonpayment of a premium.
(b) The insurer or the supervising entity must notify the enrolled customer at least 15 days before a termination under this subsection.
(3) An insurer or a supervising entity may immediately terminate an enrolled customer’s portable electronics insurance coverage if:
(a) The enrolled customer ceases to have active wireless service with the vendor policyholder; or
(b) The enrolled customer exhausts the aggregate limit of liability, and the insurer or the supervising entity sends notice of termination to the enrolled customer within 30 days after the enrolled customer exhausts the limit. If the insurer or the supervising entity does not send a timely notice of termination to the enrolled customer, notwithstanding the enrolled customer’s exhaustion of the limit, coverage continues until the insurer or the supervising entity sends the enrolled customer a notice of termination.
(4) A vendor policyholder that has issued portable electronics insurance coverage to an enrolled customer may not terminate the coverage unless the vendor policyholder provides the enrolled customer with notice of the termination not less than 30 days before the effective date of the termination. The supervising entity may provide notice under this subsection on the vendor policyholder’s behalf.
(5)(a) Notice or correspondence to a vendor policyholder or enrolled customer that is required under this section, or that is otherwise required by law, may either be sent as an electronic record in accordance with ORS 84.001 to 84.061 and 84.070, or:
(A) In the case of a vendor policyholder, mailed or delivered to the vendor policyholder at the vendor policyholder’s principal place of business in this state; or
(B) In the case of an enrolled customer, mailed or delivered to the enrolled customer’s last known mailing address.
(b) An enrolled customer consents to receive a notice or correspondence with respect to a policy of portable electronics insurance by electronic means if, after the insurer, the insurer’s agent or the vendor that sold the portable electronics notifies the enrolled customer that providing an electronic mail address to the insurer, the insurer’s agent or the vendor is consent to receive the notice or correspondence by electronic means, the enrolled customer provides an electronic mail address to the insurer, the insurer’s agent or the vendor.
(c) An insurer, a supervising entity or a vendor policyholder that provides notice or sends correspondence under this section shall maintain proof of providing the notice or sending the correspondence for a minimum of three years after the termination of the portable electronics insurance coverage. Proof of mailing or delivery to the enrolled customer’s last known mailing address or electronic mailing address is sufficient proof of providing the notice or sending the correspondence. [2011 c.393 §6; 2013 c.97 §1; 2014 c.27 §1]
646A.590 Rules. The Department of Consumer and Business Services shall adopt rules to carry out the provisions of ORS 646A.575 to 646A.590. [2011 c.393 §7]
646A.592 Enforcement. In addition to all other penalties and enforcement provisions provided by law, if a person violates a provision of ORS 646A.575 to 646A.590 or a rule adopted by the Department of Consumer and Business Services under ORS 646A.590, the department may:
(1) Suspend or revoke the person’s limited license issued under ORS 646A.577;
(2) Modify the terms of the person’s limited license issued under ORS 646A.577 to limit:
(a) The locations at which a vendor policyholder may issue, sell or offer for sale portable electronics insurance coverage; or
(b) The ability of employees, agents or authorized representatives of the vendor policyholder to issue, sell or offer for sale portable electronics insurance coverage; and
(3) Impose a civil penalty in the manner provided in ORS 183.745 not to exceed $1,000 per violation or $10,000 for multiple violations. [2011 c.393 §8]
IDENTITY THEFT PREVENTION
646A.600 Short title. ORS 646A.600 to 646A.628 shall be known as the Oregon Consumer Identity Theft Protection Act. [2007 c.759 §1]
646A.602 Definitions for ORS 646A.600 to 646A.628. As used in ORS 646A.600 to 646A.628:
(1)(a) “Breach of security” means an unauthorized acquisition of computerized data that materially compromises the security, confidentiality or integrity of personal information that a person maintains.
(b) “Breach of security” does not include an inadvertent acquisition of personal information by a person or the person’s employee or agent if the personal information is not used in violation of applicable law or in a manner that harms or poses an actual threat to the security, confidentiality or integrity of the personal information.
(2) “Consumer” means an individual resident of this state.
(3) “Consumer report” means a consumer report as described in section 603(d) of the federal Fair Credit Reporting Act (15 U.S.C. 1681a(d)), as that Act existed on January 1, 2016, that a consumer reporting agency compiles and maintains.
(4) “Consumer reporting agency” means a consumer reporting agency as described in section 603(p) of the federal Fair Credit Reporting Act (15 U.S.C. 1681a(p)) as that Act existed on January 1, 2016.
(5) “Debt” means any obligation or alleged obligation arising out of a consumer transaction.
(6) “Encryption” means an algorithmic process that renders data unreadable or unusable without the use of a confidential process or key.
(7) “Extension of credit” means a right to defer paying debt or a right to incur debt and defer paying the debt, that is offered or granted primarily for personal, family or household purposes.
(8) “Identity theft” has the meaning set forth in ORS 165.800.
(9) “Identity theft declaration” means a completed and signed statement that documents alleged identity theft, using the form available from the Federal Trade Commission, or another substantially similar form.
(10) “Person” means an individual, private or public corporation, partnership, cooperative, association, estate, limited liability company, organization or other entity, whether or not organized to operate at a profit, or a public body as defined in ORS 174.109.
(11) “Personal information” means:
(a) A consumer’s first name or first initial and last name in combination with any one or more of the following data elements, if encryption, redaction or other methods have not rendered the data elements unusable or if the data elements are encrypted and the encryption key has been acquired:
(A) A consumer’s Social Security number;
(B) A consumer’s driver license number or state identification card number issued by the Department of Transportation;
(C) A consumer’s passport number or other identification number issued by the United States;
(D) A consumer’s financial account number, credit card number or debit card number, in combination with any required security code, access code or password that would permit access to a consumer’s financial account;
(E) Data from automatic measurements of a consumer’s physical characteristics, such as an image of a fingerprint, retina or iris, that are used to authenticate the consumer’s identity in the course of a financial transaction or other transaction;
(F) A consumer’s health insurance policy number or health insurance subscriber identification number in combination with any other unique identifier that a health insurer uses to identify the consumer; or
(G) Any information about a consumer’s medical history or mental or physical condition or about a health care professional’s medical diagnosis or treatment of the consumer.
(b) Any of the data elements or any combination of the data elements described in paragraph (a) of this subsection without the consumer’s first name or first initial and last name if:
(i) Encryption, redaction or other methods have not rendered the data element or combination of data elements unusable; and
(ii) The data element or combination of data elements would enable a person to commit identity theft against a consumer.
(c) “Personal information” does not include information in a federal, state or local government record, other than a Social Security number, that is lawfully made available to the public.
(12) “Proper identification” means written information or documentation that a consumer or representative can present to another person as evidence of the consumer’s or representative’s identity, examples of which include:
(a) A valid Social Security number or a copy of a valid Social Security card;
(b) A certified or otherwise official copy of a birth certificate that a governmental body issued; and
(c) A copy of a driver license or other government-issued identification.
(13) “Protected consumer” means an individual who is:
(a) Not older than 16 years old at the time a representative requests a security freeze on the individual’s behalf; or
(b) Incapacitated or for whom a court or other authority has appointed a guardian or conservator.
(14) “Protective record” means information that a consumer reporting agency compiles to identify a protected consumer for whom the consumer reporting agency has not prepared a consumer report.
(15) “Redacted” means altered or truncated so that no more than the last four digits of a Social Security number, driver license number, state identification card number, passport number or other number issued by the United States, financial account number, credit card number or debit card number is visible or accessible.
(16) “Representative” means a consumer who provides a consumer reporting agency with sufficient proof of the consumer’s authority to act on a protected consumer’s behalf.
(17) “Security freeze” means a notice placed in a consumer report at a consumer’s request or a representative’s request or in a protective record at a representative’s request that, subject to certain exemptions, prohibits a consumer reporting agency from releasing information in the consumer report or the protective record for an extension of credit, unless the consumer temporarily lifts the security freeze on the consumer’s consumer report or a protected consumer or representative removes the security freeze on or deletes the protective record. [2007 c.759 §2; 2013 c.415 §1; 2015 c.357 §1]
646A.604 Notice of breach of security; delay; methods of notification; contents of notice; application of notice requirement. (1) A person that owns or licenses personal information that the person uses in the course of the person’s business, vocation, occupation or volunteer activities and that was subject to a breach of security shall give notice of the breach of security to:
(a) The consumer to whom the personal information pertains after the person discovers the breach of security or after the person receives notice of a breach of security under subsection (2) of this section. The person shall notify the consumer in the most expeditious manner possible, without unreasonable delay, consistent with the legitimate needs of law enforcement described in subsection (3) of this section and consistent with any measures that are necessary to determine sufficient contact information for the affected consumer, determine the scope of the breach of security and restore the reasonable integrity, security and confidentiality of the personal information.
(b) The Attorney General, either in writing or electronically, if the number of consumers to whom the person must send the notice described in paragraph (a) of this subsection exceeds 250. The person shall disclose the breach of security to the Attorney General in the manner described in paragraph (a) of this subsection.
(2) A person that maintains or otherwise possesses personal information on behalf of, or under license of, another person shall notify the other person after discovering a breach of security.
(3) A person that owns or licenses personal information may delay notifying a consumer of a breach of security only if a law enforcement agency determines that a notification will impede a criminal investigation and if the law enforcement agency requests in writing that the person delay the notification.
(4) For purposes of this section, a person that owns or licenses personal information may notify a consumer of a breach of security:
(a) In writing;
(b) Electronically, if the person customarily communicates with the consumer electronically or if the notice is consistent with the provisions regarding electronic records and signatures set forth in the Electronic Signatures in Global and National Commerce Act (15 U.S.C. 7001) as that Act existed on January 1, 2016;
(c) By telephone, if the person contacts the affected consumer directly; or
(d) With substitute notice, if the person demonstrates that the cost of notification otherwise would exceed $250,000 or that the affected class of consumers exceeds 350,000, or if the person does not have sufficient contact information to notify affected consumers. For the purposes of this paragraph, “substitute notice” means:
(A) Posting the notice or a link to the notice conspicuously on the person’s website if the person maintains a website; and
(B) Notifying major statewide television and newspaper media.
(5) Notice under this section must include, at a minimum:
(a) A description of the breach of security in general terms;
(b) The approximate date of the breach of security;
(c) The type of personal information that was subject to the breach of security;
(d) Contact information for the person that owned or licensed the personal information that was subject to the breach of security;
(e) Contact information for national consumer reporting agencies; and
(f) Advice to the consumer to report suspected identity theft to law enforcement, including the Attorney General and the Federal Trade Commission.
(6) If a person discovers a breach of security that affects more than 1,000 consumers, the person shall notify, without unreasonable delay, all consumer reporting agencies that compile and maintain reports on consumers on a nationwide basis of the timing, distribution and content of the notice the person gave to affected consumers and shall include in the notice any police report number assigned to the breach of security. A person may not delay notifying affected consumers of a breach of security in order to notify consumer reporting agencies.
(7) Notwithstanding subsection (1) of this section, a person does not need to notify consumers of a breach of security if, after an appropriate investigation or after consultation with relevant federal, state or local law enforcement agencies, the person reasonably determines that the consumers whose personal information was subject to the breach of security are unlikely to suffer harm. The person must document the determination in writing and maintain the documentation for at least five years.
(8) This section does not apply to:
(a) A person that complies with notification requirements or procedures for a breach of security that the person’s primary or functional federal regulator adopts, promulgates or issues in rules, regulations, procedures, guidelines or guidance, if the rules, regulations, procedures, guidelines or guidance provide greater protection to personal information and disclosure requirements at least as thorough as the protections and disclosure requirements provided under this section.
(b) A person that complies with a state or federal law that provides greater protection to personal information and disclosure requirements at least as thorough as the protections and disclosure requirements provided under this section.
(c) A person that is subject to and complies with regulations promulgated pursuant to Title V of the Gramm-Leach-Bliley Act of 1999 (15 U.S.C. 6801 to 6809) as that Act existed on January 1, 2016.
(d)(A) Except as provided in subparagraph (B) of this paragraph, a covered entity, as defined in 45 C.F.R. 160.103, as in effect on January 1, 2016, that is governed under 45 C.F.R. parts 160 and 164, as in effect on January 1, 2016, if the covered entity sends the Attorney General a copy of the notice the covered entity sent to consumers under ORS 646A.604 or a copy of the notice that the covered entity sent to the primary functional regulator designated for the covered entity under the Health Insurance Portability and Availability Act of 1996, (P.L. 104-191, 110 Stat. 1936, 42 U.S.C. 300(gg), 29 U.S.C. 118 et seq., 42 U.S.C. 1320(d) et seq., 45 C.F.R. parts 160 and 164).
(B) A covered entity is subject to the provisions of this section if the covered entity does not send a copy of a notice described in subparagraph (A) of this paragraph to the Attorney General within a reasonable time after the Attorney General requests the copy.
(9)(a) A person’s violation of a provision of ORS 646A.600 to 646A.628 is an unlawful practice under ORS 646.607.
(b) The rights and remedies available under this section are cumulative and are in addition to any other rights or remedies that are available under law. [2007 c.759 §3; 2015 c.357 §2]
646A.606 Security freeze; requirements; fee; proof of authority; effect. (1) A consumer may elect to place a security freeze on the consumer’s consumer report or, if the consumer is a representative, on a protected consumer’s consumer report or protective record by sending a written request to a consumer reporting agency at an address the agency designates to receive such requests, or a secure electronic request at a website the agency designates to receive such requests if the consumer reporting agency, at the agency’s discretion, makes a secure electronic method available.
(2) If the consumer or protected consumer is the victim of identity theft or has reported a theft of personal information to a law enforcement agency, the consumer or representative may include a copy of the police report, incident report or identity theft declaration.
(3)(a) The consumer or representative must provide proper identification and any fee authorized by ORS 646A.610.
(b)(A) In addition to the information and fee described in paragraph (a) of this subsection, a representative who seeks to place a security freeze on a protected consumer’s consumer report or protective record shall provide sufficient proof of the representative’s authority to act on the protected consumer’s behalf.
(B) For purposes of subparagraph (A) of this paragraph, sufficient proof of authority consists of:
(i) A court order that identifies or describes the relationship between the representative and the protected consumer;
(ii) A valid and lawfully executed power of attorney that permits the representative to act on the protected consumer’s behalf; or
(iii) A written affidavit that the representative signs and has notarized in which the representative expressly describes the relationship between the representative and the protected consumer and the representative’s authority to act on the protected consumer’s behalf.
(4)(a) Except as provided in ORS 646A.614, if a security freeze is in place for a consumer report, information from the consumer report may not be released without prior express authorization from the consumer.
(b) Information from a protective record may not be released until the protected consumer for whom the consumer reporting agency created the protective record, or a representative of the protected consumer, removes the security freeze.
(5) This section does not prevent a consumer reporting agency from advising a third party that a security freeze is in effect with respect to the consumer report or protective record. [2007 c.759 §4; 2013 c.415 §2]
646A.608 Deadline for placing security freeze; protective record creation; use and release of information; confirmation; personal identification number; exception; lifting and removal; fees. (1)(a) A consumer reporting agency shall place a security freeze on a consumer report not later than five business days after receiving from a consumer:
(A) The request described in ORS 646A.606 (1);
(B) Proper identification; and
(C) A fee, if applicable.
(b) If a consumer report does not exist for a protected consumer on behalf of whom a representative seeks to place a security freeze, a consumer reporting agency shall create a protective record after receiving from the representative the request described in ORS 646A.606 (1), proper identification for both the representative and the protected consumer and sufficient proof of authority, as described in ORS 646A.606 (3)(b). After creating a protective record for a protected consumer under this paragraph, the consumer reporting agency shall place the security freeze that the representative requested on the protected consumer’s protective record.
(c) The protective record that the consumer reporting agency creates under paragraph (b) of this subsection does not need to contain any information other than the protected consumer’s personal information, if other information for the protected consumer is not available. Except as provided in ORS 646A.614, a consumer reporting agency may not use or release to another person the information in a protective record for the purpose of assessing a protected consumer’s eligibility or capacity for an extension of credit, as a basis for evaluating a protected consumer’s character, reputation or personal characteristics or for other purposes that are not related to protecting the protected consumer from identity theft.
(2)(a) The consumer reporting agency shall send a written confirmation of a security freeze on a consumer’s consumer report to the consumer at the last known address for the consumer shown in the consumer report that the consumer reporting agency maintains, within 10 business days after placing the security freeze and, with the confirmation, shall provide the consumer with a unique personal identification number or password or similar device the consumer must use to authorize the consumer reporting agency to release the consumer’s consumer report for a specific period of time or to permanently remove the security freeze. The consumer reporting agency shall include with the written confirmation information that describes how to remove a security freeze and how to temporarily lift a security freeze on a consumer report, other than a consumer report for a protected consumer, in order to allow access to information from the consumer’s consumer report for a period of time while the security freeze is in place.
(b) This subsection does not require a consumer reporting agency to provide a consumer or representative with a personal identification number or password for the consumer or representative to use to authorize the consumer reporting agency to release information from a protective record.
(3)(a) If a consumer wishes to allow the consumer’s consumer report to be accessed for a specific period of time while a security freeze is in effect, the consumer shall contact the consumer reporting agency using a point of contact the consumer reporting agency designates, request that the security freeze be temporarily lifted and provide the following:
(A) Proper identification;
(B) The unique personal identification number or password or similar device the consumer reporting agency provided under subsection (2) of this section;
(C) An indication of the period of time during which the consumer report must be available to users of the consumer report; and
(D) A fee, if applicable.
(b) A protective record is not subject to a temporary lift of a security freeze.
(c) Except as provided in ORS 646A.612 (2)(a), a consumer report for a protected consumer is not subject to a temporary lift of a security freeze.
(4) A consumer reporting agency that receives a request from the consumer to temporarily lift a security freeze on a consumer report, other than a consumer report for a protected consumer, under subsection (3) of this section shall comply with the request not later than three business days after receiving from the consumer:
(a) Proper identification;
(b) The unique personal identification number or password or similar device the consumer reporting agency provided under subsection (2) of this section;
(c) An indication of the period of time during which the consumer report must be available to users of the consumer report; and
(d) A fee, if applicable.
(5)(a) A security freeze for a consumer report must remain in place until the consumer requests, using a point of contact the consumer reporting agency designates, that the security freeze be removed. A consumer reporting agency shall remove a security freeze within three business days after receiving a request for removal from the consumer, who provides:
(A) Proper identification;
(B) The unique personal identification number or password or similar device the consumer reporting agency provided under subsection (2) of this section; and
(C) A fee, if applicable.
(b) A security freeze for a protective record must remain in place until the protected consumer or a representative requests, using a point of contact the consumer reporting agency designates, that the security freeze be removed or that the protective record be deleted. The consumer reporting agency does not have an affirmative duty to notify the protected consumer or the representative that a security freeze is in place or to remove the security freeze or delete the protective record once the protected consumer is no longer a protected consumer. A protected consumer or a representative has the affirmative duty to request that the consumer reporting agency remove the security freeze or delete the protective record. A consumer reporting agency shall remove a security freeze or delete a protective record within 30 business days after receiving a request for removal or deletion from the protected consumer or a representative, who provides:
(A) Proper identification;
(B) Sufficient proof of authority, as described in ORS 646A.606 (3)(b), if the representative seeks to remove the security freeze or delete the protective record;
(C) Proof that the representative’s authority to act on the protected consumer’s behalf is no longer valid or applicable, if the protected consumer seeks to remove the security freeze or delete the protective record; and
(D) A fee, if applicable. [2007 c.759 §5; 2013 c.415 §3]
646A.610 Permissible fees. (1) A consumer reporting agency may not charge a fee to a consumer or a protected consumer who is the victim of identity theft or to a consumer who has reported or a protected consumer for whom a representative has reported to a law enforcement agency the theft of personal information, provided the consumer or the representative has submitted to the consumer reporting agency a copy of a valid police report, incident report or identity theft declaration.
(2)(a) A consumer reporting agency may charge a reasonable fee of not more than $10 to a consumer, other than a consumer described in subsection (1) of this section, for each placement of a security freeze, temporary lift of the security freeze, removal of the security freeze or replacing a lost personal identification number or password previously provided to the consumer.
(b)(A) Except as provided in subsection (1) of this section and in subparagraph (B) of this paragraph, a consumer reporting agency may charge a reasonable fee of not more than $10 to place or remove a security freeze for a protected consumer’s consumer report or protective record or to create or delete a protective record for a protected consumer.
(B) A consumer reporting agency may not charge a fee to place or remove a security freeze on an existing consumer report or protective record for a protected consumer who is under 16 years of age at the time a representative requests the consumer reporting agency to place or remove the security freeze. [2007 c.759 §6; 2013 c.415 §4]
646A.612 Conditions for lifting or removing security freeze. (1)(a) A consumer reporting agency shall temporarily lift or remove a security freeze placed on a consumer report only if a consumer requests that the consumer reporting agency lift or remove the security freeze for the consumer report in accordance with ORS 646A.608.
(b) A consumer reporting agency shall remove a security freeze from a protected consumer’s consumer report or protective record or delete a protective record only if the protected consumer or a representative requests that the consumer reporting agency remove the security freeze from the consumer report or protective record or delete the protective record in accordance with ORS 646A.608.
(2)(a) A consumer reporting agency may temporarily lift or remove a security freeze placed on a consumer report if the security freeze was placed because of a consumer’s, a protected consumer’s or a representative’s material misrepresentation of fact.
(b) A consumer reporting agency may remove a security freeze from or delete a protective record if the consumer reporting agency placed the security freeze or created the protective record as a result of the protected consumer’s or the representative’s material misrepresentation of fact.
(c) If a consumer reporting agency intends to remove a security freeze or delete a protective record under this subsection, the consumer reporting agency shall notify the consumer, protected consumer or representative, as appropriate, in writing at least five business days before removing the security freeze or deleting the protective record. [2007 c.759 §7; 2013 c.415 §5]
646A.614 Effect of security freeze on use of consumer reports or protective records. (1) The provisions of ORS 646A.606 to 646A.610 do not apply to the use of a consumer report or a protective record by or for any of the following:
(a) A person, or the person’s subsidiary, affiliate, agent or assignee with which the consumer or protected consumer has or, prior to assignment, had an account, contract or debtor-creditor relationship for the purposes of reviewing the account or collecting the financial obligation owing for the account, contract or debtor-creditor relationship. For purposes of this subsection, “reviewing the account” includes activities related to account maintenance, monitoring, credit line increases and account upgrades and enhancements.
(b) Any person acting pursuant to a judgment, court order, warrant or subpoena.
(c) A federal, state or local governmental entity, a law enforcement agency or court, or an agent or assignee of the federal, state or local governmental entity, law enforcement agency or court, for the purpose of investigating fraud or investigating or collecting delinquent taxes, unpaid judgments or court orders or acting otherwise to fulfill statutory or regulatory duties, if the activities or statutory or regulatory duties are consistent with a permissible purpose under section 604 of the federal Fair Credit Reporting Act (15 U.S.C. 1681b) as that Act existed on October 1, 2007.
(d) The use of credit information for the purposes of prescreening in accordance with the federal Fair Credit Reporting Act (15 U.S.C. 1681 et seq.) as that Act existed on October 1, 2007.
(e) Any person for the sole purpose of providing a credit file monitoring subscription service, or similar service to which the consumer or protected consumer has subscribed or to which a representative has subscribed on behalf of the protected consumer.
(f) A consumer reporting agency for the sole purpose of providing a consumer, a protected consumer or a representative with a copy of the consumer’s or protected consumer’s consumer report upon the consumer’s, protected consumer’s or representative’s request.
(g) Any person or entity for the purpose of setting or adjusting rates, for handling claims or underwriting for insurance purposes, to the extent permitted by law.
(h) A subsidiary, affiliate, agent, assignee or prospective assignee of a person to whom access has been granted under ORS 646A.608 (3) for purposes of facilitating the extension of credit or other permissible use.
(i) A child support agency acting pursuant to Title IV-D of the Social Security Act (42 U.S.C. 651 et seq.) as that Act existed on October 1, 2007.
(j) A person for the sole purpose of screening an applicant for a residential dwelling unit as described in ORS 90.295 (1).
(2) The provisions of ORS 646A.606 to 646A.610 do not apply to a protective record used:
(a) By an entity listed in ORS 646A.618 (2); or
(b) For purposes other than an extension of credit, including:
(A) Compiling a criminal record;
(B) Detecting or preventing fraud;
(C) Compiling a personal loss history; or
(D) Screening an applicant for employment, tenancy or other background checking purposes. [2007 c.759 §8; 2013 c.415 §6]
646A.616 Effect of request for consumer report subject to security freeze. If a third party requests access to a consumer report on which a security freeze is in effect, the request is in connection with an application for credit or any other use, the consumer does not allow the consumer’s consumer report to be accessed for that period of time, and the third party cannot obtain the consumer report through ORS 646A.614, the third party may treat the application as incomplete. [2007 c.759 §9]
646A.618 Prohibition on changes to consumer report subject to security freeze; entities subject to requirement to place security freeze. (1) If a security freeze is in place, a consumer reporting agency shall not change any of the following official information in a consumer credit report without sending a written confirmation of the change to the consumer within 30 days of the change being posted to the consumer’s report: name, date of birth, Social Security number and address. Written confirmation is not required for technical modifications of a consumer’s official information, including name and street abbreviations, complete spellings or transposition of numbers or letters. In the case of an address change, the written confirmation shall be sent to both the new address and to the former address.
(2) The following entities are not required to place a security freeze on a credit report:
(a) A consumer reporting agency that acts only as a reseller of credit information by assembling and merging information contained in the database of another consumer reporting agency or multiple consumer reporting agencies, and does not maintain a database of credit information from which new consumer credit reports are produced. However, a consumer reporting agency acting as a reseller shall honor any security freeze placed on a consumer report by another consumer reporting agency.
(b) A check services or fraud prevention services company that issues reports on incidents of fraud or authorizations for the purpose of approving or processing negotiable instruments, electronic funds transfers or similar methods of payments.
(c) A deposit account information service company that issues reports regarding account closures due to fraud, substantial overdrafts, ATM abuse or similar negative information regarding a consumer, to inquiring banks or other financial institutions for use only in reviewing a consumer request for a deposit account at the inquiring bank or financial institution. [2007 c.759 §10]
646A.620 Prohibition on printing, displaying or posting Social Security numbers; exemptions. (1) Except as otherwise specifically provided by law a person shall not:
(a) Print a consumer’s Social Security number on any materials not requested by the consumer or part of the documentation of a transaction or service requested by the consumer that are mailed to the consumer unless redacted;
(b) Print a consumer’s Social Security number on any card required for the consumer to access products or services provided by the person; or
(c) Publicly post or publicly display a consumer’s Social Security number unless redacted. As used in this paragraph, “publicly post or publicly display” means to communicate or otherwise make available to the public.
(2) This section does not prevent the collection, use, or release of a Social Security number as required by state or federal law, including statute, Oregon Rules of Civil Procedure or rule adopted by the Chief Justice of the Supreme Court, the Chief Judge of the Court of Appeals or the judge of the Oregon Tax Court, or the use or printing of a Social Security number for internal verification or administrative purposes or for enforcement of a judgment or court order.
(3) This section does not apply to records that are required by state or federal law, including statute, Oregon Rules of Civil Procedure or rule adopted by the Chief Justice of the Supreme Court, the Chief Judge of the Court of Appeals or the judge of the Oregon Tax Court, to be made available to the public.
(4) This section does not apply to a Social Security number in any of the following records or copies of records in any form or storage medium maintained or otherwise possessed by a court, the State Court Administrator or the Secretary of State:
(a) A record received on or before October 1, 2007;
(b) A record received after October 1, 2007, if, by state or federal statute or rule, the person that submitted the record could have caused the record to be filed or maintained in a manner that protected the Social Security number from public disclosure; or
(c) A record, regardless of the date created or received, that is:
(A) An accusatory instrument charging a violation or crime;
(B) A record of oral proceedings in a court;
(C) An exhibit offered as evidence in a proceeding; or
(D) A judgment or court order. [2007 c.759 §11]
646A.622 Requirement to develop safeguards for personal information; conduct deemed to comply with requirement. (1) A person that owns, maintains or otherwise possesses data that includes a consumer’s personal information that the person uses in the course of the person’s business, vocation, occupation or volunteer activities shall develop, implement and maintain reasonable safeguards to protect the security, confidentiality and integrity of the personal information, including safeguards that protect the personal information when the person disposes of the personal information.
(2) A person complies with subsection (1) of this section if the person:
(a) Complies with a state or federal law that provides greater protection to personal information than the protections that this section provides.
(b) Complies with regulations promulgated under Title V of the Gramm-Leach-Bliley Act of 1999 (15 U.S.C. 6801 to 6809) as in effect on January 1, 2016, if the person is subject to the Act.
(c) Complies with regulations that implement the Health Insurance Portability and Accountability Act of 1996 (45 C.F.R. parts 160 and 164) as in effect on January 1, 2016, if the person is subject to the Act.
(d) Implements an information security program that includes:
(A) Administrative safeguards such as:
(i) Designating one or more employees to coordinate the security program;
(ii) Identifying reasonably foreseeable internal and external risks;
(iii) Assessing whether existing safeguards adequately control the identified risks;
(iv) Training and managing employees in security program practices and procedures;
(v) Selecting service providers that are capable of maintaining appropriate safeguards, and requiring the service providers by contract to maintain the safeguards; and
(vi) Adjusting the security program in light of business changes or new circumstances;
(B) Technical safeguards such as:
(i) Assessing risks in network and software design;
(ii) Assessing risks in information processing, transmission and storage;
(iii) Detecting, preventing and responding to attacks or system failures; and
(iv) Testing and monitoring regularly the effectiveness of key controls, systems and procedures; and
(C) Physical safeguards such as:
(i) Assessing risks of information storage and disposal;
(ii) Detecting, preventing and responding to intrusions;
(iii) Protecting against unauthorized access to or use of personal information during or after collecting, transporting, destroying or disposing of the personal information; and
(iv) Disposing of personal information after the person no longer needs the personal information for business purposes or as required by local, state or federal law by burning, pulverizing, shredding or modifying a physical record and by destroying or erasing electronic media so that the information cannot be read or reconstructed.
(3) A person complies with subsection (2)(d)(C)(iv) of this section if the person contracts with another person engaged in the business of record destruction to dispose of personal information in a manner that is consistent with subsection (2)(d)(C)(iv) of this section.
(4) Notwithstanding subsection (2) of this section, a person that is an owner of a small business as defined in ORS 285B.123 (2) complies with subsection (1) of this section if the person’s information security and disposal program contains administrative, technical and physical safeguards and disposal measures that are appropriate for the size and complexity of the small business, the nature and scope of the small business’s activities, and the sensitivity of the personal information the small business collects from or about consumers. [2007 c.759 §12; 2015 c.357 §3]
646A.624 Powers of director; penalties. (1) The Director of the Department of Consumer and Business Services may:
(a) Make such public or private investigations within or outside this state as the director deems necessary to determine whether a person has violated any provision of ORS 646A.600 to 646A.628, or to aid in the enforcement of ORS 646A.600 to 646A.628.
(b) Require or permit a person to file a statement in writing, under oath or otherwise as the director determines, as to all the facts and circumstances concerning the matter to be investigated.
(c) Administer oaths and affirmations, subpoena witnesses, compel attendance, take evidence and require the production of books, papers, correspondence, memoranda, agreements or other documents or records that the director deems relevant or material to the inquiry. Each witness who appears before the director under a subpoena shall receive the fees and mileage provided for witnesses in ORS 44.415 (2).
(2) If a person fails to comply with a subpoena so issued or a party or witness refuses to testify on any matters, the judge of the circuit court or of any county, on the application of the director, shall compel obedience by proceedings for contempt as in the case of disobedience of the requirements of a subpoena issued from such court or a refusal to testify therein.
(3) If the director has reason to believe that any person has engaged or is engaging in any violation of ORS 646A.600 to 646A.628, the director may issue an order, subject to ORS chapter 183, directed to the person to cease and desist from the violation, or require the person to pay compensation to consumers injured by the violation. The director may order compensation to consumers only upon a finding that enforcement of the rights of the consumers by private civil action would be so burdensome or expensive as to be impractical.
(4)(a) In addition to all other penalties and enforcement provisions provided by law, any person who violates or who procures, aids or abets in the violation of ORS 646A.600 to 646A.628 shall be subject to a penalty of not more than $1,000 for every violation, which shall be paid to the General Fund of the State Treasury.
(b) Every violation is a separate offense and, in the case of a continuing violation, each day’s continuance is a separate violation, but the maximum penalty for any occurrence shall not exceed $500,000.
(c) Civil penalties under this section shall be imposed as provided in ORS 183.745. [2007 c.759 §13]
646A.626 Rules. In accordance with ORS chapter 183, the Director of the Department of Consumer and Business Services may adopt rules for the purpose of carrying out the provisions of ORS 646A.600 to 646A.628. [2007 c.759 §14]
646A.628 Allocation of moneys. Notwithstanding ORS 705.145 (2), (3) and (5), the Director of the Department of Consumer and Business Services can allocate as deemed appropriate the moneys derived pursuant to ORS 86A.095 to 86A.198, 86A.990, 86A.992, 650.005 to 650.100, 697.005 to 697.095, 697.602 to 697.842, 705.350 and 717.200 to 717.320 and 731.804 and ORS chapters 59, 645, 706 to 716, 723, 725 and 726 to implement ORS 646A.600 to 646A.628. [2007 c.759 §15; 2009 c.541 §23; 2009 c.604 §24]
MORTGAGE RESCUE FRAUD PREVENTION ACT
(Foreclosure Consultants)
646A.700 Short title. ORS 646A.702 to 646A.720 and 646A.725 to 646A.750 may be cited as the Mortgage Rescue Fraud Protection Act. [2008 c.19 §1]
646A.702 Definitions for ORS 646A.702 to 646A.720. As used in ORS 646A.702 to 646A.720:
(1) “Default” means having one or more homeowner obligations in arrears to an extent that a notice of default could properly be recorded against the residence.
(2) “Family” means a spouse, domestic partner, parent, stepparent, grandparent, child, stepchild, grandchild, sibling, aunt, uncle, cousin or in-law.
(3) “Foreclosure consultant,” except as provided in ORS 646A.705, means a person that directly or through association with another makes a solicitation, representation or offer to a homeowner to perform, for or with the intent to receive compensation from or on behalf of the homeowner, a service that the solicitation, representation or offer indicates will accomplish one or more of the following:
(a) Prevent, postpone or stop a foreclosure sale.
(b) Obtain a forbearance from a beneficiary or mortgagee.
(c) Assist the homeowner in exercising a right of redemption.
(d) Obtain an extension of the period within which the homeowner may reinstate the homeowner’s obligation.
(e) Obtain the waiver of an acceleration clause that is:
(A) Contained in a promissory note or contract; and
(B) Secured by or contained in a deed of trust for, or mortgage on, a residence in foreclosure or in default.
(f) Assist the homeowner in obtaining a loan or advance of funds.
(g) Avoid or ameliorate an impairment of the homeowner’s credit resulting from a recorded notice of foreclosure or default.
(4) “Foreclosure consulting contract” means an agreement between a foreclosure consultant and a homeowner for the provision of services by a foreclosure consultant in regard to a residence in foreclosure or in default.
(5) “Homeowner” means the record owner of a residence.
(6) “Residence in foreclosure” means residential real property:
(a) Consisting of one to four single-family dwelling units;
(b) On which the owner occupies a dwelling unit; and
(c) Against which a notice of default has been recorded. [2008 c.19 §2]
646A.705 Persons that are not foreclosure consultants. The following are not foreclosure consultants for purposes of ORS 646A.702 to 646A.720:
(1) An individual licensed to practice law in this state, if performing services within an attorney-client relationship.
(2) A person that holds or is owed an obligation that is secured by a lien on a residence in foreclosure or default, if performing services in connection with the obligation or lien.
(3) A person doing business under authority of an Oregon or federal law regulating banks, trust companies, savings and loan associations, credit unions or insurance companies, or as a licensee under ORS chapter 725, if performing business services within the scope of that authority or license.
(4) A subsidiary, affiliate or agent of a person described in subsection (3) of this section, if performing business services within the scope of the person’s authority or license as the person’s subsidiary, affiliate or agent.
(5) The judgment creditor of a homeowner, if the creditor’s claim accrued before a notice of sale was sent to the creditor under ORS 86.764.
(6) A title insurer authorized to conduct business in Oregon or an insurance producer licensed to conduct business in Oregon, if performing title insurance or settlement services within the scope of that authority or license.
(7) A mortgage broker or mortgage lender licensed under ORS 86A.095 to 86A.198 to conduct business in Oregon, if acting within the scope of that license.
(8) A real estate licensee under ORS 696.022 or an escrow agent licensed under ORS 696.511, if acting within the scope of that license.
(9) A tax-exempt organization that offers counseling or advice to homeowners in foreclosure, if the organization:
(a) Is not directly or indirectly related to for-profit lenders or foreclosure purchasers;
(b) Does not contract to provide services to or receive services from for-profit lenders or foreclosure purchasers; and
(c) Has provided counseling or advice to homeowners for five years or more.
(10) A creditors’ committee, trustee or debtor in possession participating in a proceeding under the jurisdiction of the United States Bankruptcy Court.
(11) Any person whose employment with regard to a residential real property matter under the jurisdiction of the United States Bankruptcy Court is approved by order of the bankruptcy court.
(12) A person that is a member of the homeowner’s family or is owned or controlled by a member of the homeowner’s family. [2008 c.19 §3; 2011 c.9 §83]
646A.710 Foreclosure consulting contract; requirements; void provisions. (1) A written foreclosure consulting contract is required for any services that a foreclosure consultant provides to a homeowner. A foreclosure consultant shall provide a homeowner with a copy of the foreclosure consulting contract at least 24 hours before the homeowner signs the contract. The foreclosure consulting contract must:
(a) Be written in a language that is spoken by the homeowner and that was used in discussions between the homeowner and foreclosure consultant to describe the foreclosure consultant’s services or to negotiate the contract and, except as provided in paragraph (f) of this subsection, be printed in at least 12-point type.
(b) Fully disclose the nature and extent of the services the foreclosure consultant is to provide.
(c) Fully disclose the terms and total amount of any compensation the foreclosure consultant or a person working in association with the foreclosure consultant is to receive.
(d) Be dated and personally signed by the homeowner and the foreclosure consultant.
(e) Contain on the first page the name and address, facsimile number and electronic mail address of the foreclosure consultant to which a notice of cancellation may be delivered.
(f) Contain, in immediate proximity to the space reserved for the homeowner’s signature, a notice in substantially the following form and printed in at least 14-point boldfaced type:
______________________________________________________________________________
NOTICE REQUIRED BY OREGON LAW
THIS IS AN IMPORTANT LEGAL CONTRACT AND COULD RESULT IN THE LOSS OF YOUR HOME.
YOU MAY CANCEL THIS CONTRACT AT ANY TIME.
If you cancel, you must pay for any services that were provided under this contract before the cancellation and repay any money spent on your behalf under this contract. You have 60 days after cancellation to pay for services and to repay any money spent on your behalf. You must also pay any interest allowed by this contract, which may not exceed nine percent per year.
________(name of foreclosure consultant) or any person working with ________ (name of foreclosure consultant) CANNOT ask you to sign or have you sign any lien, mortgage or deed that transfers an interest in your home or property to ________ (name of foreclosure consultant) or any person working with ________ (name of foreclosure consultant).
________(name of foreclosure consultant) or any person working with ________ (name of foreclosure consultant) CANNOT guarantee you that they will be able to refinance your home or arrange for you to keep your home.
The law requires that this contract contain the entire agreement. You should not rely on any other written or oral agreement or promise.
______________________________________________________________________________
(2) A foreclosure consulting contract provision is void if the provision provides for the homeowner to:
(a) Waive any rights of the homeowner under ORS 646A.702 to 646A.720;
(b) Consent to jurisdiction for litigation or dispute resolution in a state other than Oregon;
(c) Consent to a choice of laws provision that applies the laws of a state other than Oregon;
(d) Consent to venue in a county other than the county in which the residence in foreclosure or default is located; or
(e) Pay any costs or fees incurred by the foreclosure consultant to enforce the contract, other than court costs and filing fees incurred in a successful circuit court action. [2008 c.19 §4]
646A.715 Cancellation; effective date; payment for services provided before cancellation or breach; form; sufficiency of notice. (1) In addition to any other cancellation or rescission right, a homeowner may cancel a foreclosure consulting contract as provided under this section at any time.
(2) Cancellation under this section occurs when the homeowner gives written notice of cancellation to the foreclosure consultant:
(a) At a physical address specified in the foreclosure consulting contract; or
(b) At a facsimile number or electronic mail address specified in the foreclosure consulting contract.
(3)(a) If the homeowner gives written notice of cancellation under this section by mail, the notice is effective when deposited in the United States mail with the proper address and postage.
(b) If the homeowner gives written notice of cancellation under this section by facsimile or electronic mail, the notice is effective upon receipt. Proof of a transmission by the homeowner to the facsimile number or electronic mail address specified in the foreclosure consulting contract creates a rebuttable presumption that the foreclosure consultant received the notice at the time of the transmission.
(4) A homeowner who cancels or breaches a foreclosure consulting contract under this section shall, no later than 60 days after the cancellation or breach, pay for any services performed in good faith under the contract by or on behalf of the foreclosure consultant prior to the cancellation or breach and repay any moneys paid or advanced under the contract by or on behalf of the foreclosure consultant. The homeowner shall also pay any interest allowed by the foreclosure consulting contract, not to exceed nine percent per year.
(5) Failure of the homeowner to repay moneys as provided in subsection (4) of this section does not invalidate the cancellation of the foreclosure consulting contract.
(6) When both parties have signed the foreclosure consulting contract, the foreclosure consultant shall immediately provide the homeowner with a signed and dated copy of the contract and a cancellation form. The cancellation form must:
(a) Be in duplicate;
(b) Be on a separate sheet of paper attached to the foreclosure consulting contract;
(c) Be easily detachable; and
(d) Contain a statement in substantially the following form and printed in at least 14-point boldfaced type:
______________________________________________________________________________
HOW TO CANCEL
_____(Date of Contract)
YOU MAY CANCEL THIS CONTRACT WITHOUT PENALTY AT ANY TIME.
To cancel the contract, mail or deliver a signed and dated copy of this Notice of Cancellation, or write something saying you want to cancel, and send it to _________ (name of foreclosure consultant) at _________ (address of foreclosure consultant). You can cancel by fax or e-mail. Send any cancellation by fax to _________ or any cancellation by e-mail to_________.
If you cancel, you must pay for any services that were provided under the contract before the cancellation and repay any money spent on your behalf under the contract. You have 60 days after cancellation to pay for services and to repay any money spent on your behalf. You must also pay any interest allowed under the contract, which may not exceed nine percent per year.
NOTICE OF CANCELLATION
TO: _________(name of foreclosure consultant)
_________(address, fax or e-mail of foreclosure consultant)
I cancel this contract.
Date: _____
Your (homeowner’s) printed name and address:
____________
Your (homeowner’s) signature:
____________
______________________________________________________________________________
(7) A written notice of cancellation under this section is sufficient, however expressed, if the notice indicates the intent of the homeowner to cancel the foreclosure consulting contract. The contract may not require the homeowner to use the notice of cancellation form set forth in subsection (6) of this section. [2008 c.19 §5]
646A.720 Prohibited acts of foreclosure consultant. A foreclosure consultant may not:
(1) Claim, demand, charge, collect or receive any compensation from a homeowner unless the foreclosure consultant has performed in good faith under the contract:
(a) Each service the foreclosure consultant contracted to perform for the homeowner; or
(b) Each service to be compensated, prior to the homeowner canceling or breaching the contract.
(2) Claim, demand, charge, collect or receive interest or other compensation that exceeds nine percent per year on any services performed, any loan by the foreclosure consultant to the homeowner or any moneys paid or advanced to the homeowner under the foreclosure consulting contract.
(3) Take a wage assignment, lien on real or personal property or other security for the payment of compensation.
(4) Receive consideration from a third party in connection with services provided by a foreclosure consultant to a homeowner, unless the consideration is first fully disclosed in writing to the homeowner.
(5) Directly or indirectly acquire an interest in a residence in foreclosure or default transferred by a homeowner with whom the foreclosure consultant has contracted, including any interest transferred to or through a member of the foreclosure consultant’s family or to or through a subsidiary, affiliate or related entity in which the foreclosure consultant or a member of the foreclosure consultant’s family is a primary member, shareholder or owner.
(6) Receive compensation from a third party for facilitating or arranging for entry into an equity conveyance as defined in ORS 646A.725 by a homeowner with whom the foreclosure consultant has contracted.
(7) Facilitate or arrange for entry into an equity conveyance as defined in ORS 646A.725 by a homeowner with whom the foreclosure consultant has contracted, if the foreclosure consultant knows or should know that the equity purchaser has failed to comply with ORS 646A.735 (1).
(8) Take a power of attorney from a homeowner except for the purpose of obtaining or inspecting documents.
(9) Induce or attempt to induce any homeowner to enter into a foreclosure consulting contract that does not comply in all respects with ORS 646A.702 to 646A.720.
(10) Directly or by implication make a statement or engage in conduct that is false, deceptive, misleading or likely to cause confusion or misunderstanding regarding a:
(a) Foreclosure consultant service;
(b) Foreclosure consulting contract; or
(c) Residence in foreclosure or default. [2008 c.19 §6]
(Equity Conveyances)
646A.725 Definitions for ORS 646A.725 to 646A.750. As used in ORS 646A.725 to 646A.750:
(1) “Bona fide purchaser” means a person that purchases a residential real property from an equity purchaser:
(a) For valuable consideration;
(b) In good faith;
(c) Without knowledge of any continuing right to, or equity in, the property by the equity seller; and
(d) Without knowledge of any violation of ORS 646A.725 to 646A.750 by the equity purchaser regarding the property.
(2) “Business day” does not mean a Saturday or a legal holiday described in ORS 187.010 or 187.020.
(3) “Equity conveyance”:
(a) Means a transaction that involves:
(A) The transfer of an interest in a residence in foreclosure by an equity seller to an equity purchaser, or to another person acting in association with the equity purchaser, that allows the equity purchaser or other person to obtain legal or equitable title to all or part of the residential real property; and
(B) A subsequent conveyance, or agreement for a subsequent conveyance, of an interest in the residential real property from the equity purchaser or person acting in association with the equity purchaser to the equity seller to allow the equity seller to possess the property during, or after termination of, the foreclosure process.
(b) Does not mean a transfer of interest by means of a nonjudicial foreclosure sale or by means of a sheriff’s sale or other judicial foreclosure action.
(4) “Equity conveyance contract” means a written contract between an equity seller and an equity purchaser that contains an agreement for an equity conveyance.
(5) “Equity purchaser,” except as provided in ORS 646A.730, means a person that enters into an equity conveyance that transfers to the person, or to another acting in association with the person, an interest in residential real property sufficient to allow obtaining legal or equitable title to all or part of the property.
(6) “Equity recapture payment” means the resale price for a property, less the following:
(a) Amounts owing as of the closing of the resale for liens or other encumbrances created or suffered by the equity seller.
(b) Amounts paid after the transfer of interest in the property by the equity seller and before the closing of the resale on liens or other encumbrances created or suffered by the equity seller.
(c) Cash received by the equity seller from the equity purchaser under the equity conveyance contract.
(d) Title, escrow and other customary closing costs incurred by the equity purchaser under the equity conveyance contract or because of the resale.
(e) Real estate commissions and charges incurred by the equity purchaser under the equity conveyance contract or because of the resale.
(f) Charges for prorated taxes and homeowner association dues, attributable to a period of time prior to the transfer of interest in the property by the equity seller.
(g) Attorney fees incurred by the equity purchaser under the equity conveyance contract or because of the resale.
(h) Reimbursement of actual repair and maintenance expenses.
(i) Reimbursement for the construction of improvements to the property.
(7) “Equity seller” means a natural person who is the record owner of a residence in foreclosure at the time an interest in the residence is transferred under an equity conveyance to an equity purchaser or to a person acting in association with an equity purchaser.

(9) “Resale” means a sale by an equity purchaser to a bona fide purchaser of residential real property that is the subject of an equity conveyance contract.
(10) “Resale price” means the gross sale price of a residential real property upon resale.
(11) “Residence in foreclosure” means residential real property:
(a) Consisting of one to four single-family dwelling units;
(b) On which the owner occupies a dwelling unit; and
(c) Against which a notice of default has been recorded.
(12) “Settlement agent” means a provider of settlement services who:
(a) Is a licensed escrow agent, title insurance agent or attorney; and
(b) Is not the equity purchaser or an employee or associate of the equity purchaser.
(13) “Settlement conference” means an in-person meeting between an equity seller and a settlement agent:
(a) For the purpose of completing documents incident to the transfer of an interest as part of an equity conveyance; and
(b) During which the settlement agent provides the equity seller with the HUD-1 settlement statement used by the United States Department of Housing and Urban Development. [2008 c.19 §9]
646A.730 Persons that are not equity purchasers. The following are not equity purchasers for purposes of ORS 646A.725 to 646A.750:
(1) A party to a deed in lieu of foreclosure.
(2) A creditors’ committee, trustee or debtor in possession participating in a proceeding under the jurisdiction of the United States Bankruptcy Court.
(3) Any person whose employment with regard to a residential real property matter under the jurisdiction of the United States Bankruptcy Court is approved by order of the bankruptcy court.
(4) A family or living trust in which the equity seller is the beneficiary or a member of the beneficiary. [2008 c.19 §10]
646A.735 Written contract; requirements; void provisions; power of attorney prohibited. (1) A written contract is required for every equity conveyance. An equity purchaser shall provide an equity seller with a copy of the equity conveyance contract at least 24 hours before the equity seller signs the contract. The equity conveyance contract must:
(a) Be written in a language that is spoken by the equity seller and that was used in discussions between the equity seller and equity purchaser to describe the equity purchaser’s services or to negotiate the terms of the contract and, except as provided in paragraph (f) of this subsection, be printed in at least 12-point type;
(b) Contain the entire agreement of the parties;
(c) Be dated and personally signed by the equity seller and the equity purchaser and witnessed by a notary public;
(d) Contain on the first page the name and address, facsimile number and electronic mail address of the settlement agent to which a notice of cancellation may be delivered;
(e) Describe in detail the terms of the equity conveyance including:
(A) The name and business address, and any telephone number, facsimile number and electronic mail address, of the person to whom the equity seller will transfer an interest in the residence in foreclosure;
(B) The address of the residence in foreclosure;
(C) The total consideration the equity purchaser and any other party are to give as a result of the transfer of interest;
(D) The time at which the interest is to be transferred to the equity purchaser or other person and the terms of the transfer;
(E) Any financial or legal obligations that the equity seller may remain subject to, including a description of any mortgages, liens or other obligations that will remain in place;
(F) Any services the equity purchaser will perform for the equity seller before or after the transfer of interest;
(G)(i) The terms of any post-transfer conveyance or agreement for a conveyance to the equity seller to allow the equity seller to remain in the home, including but not limited to the terms of any rental agreement, repurchase agreement, contract for deed, land installment contract or option to buy; and
(ii) Any provisions for eviction or removal of the equity seller in the case of late payment;
(H) An explanation of how any repurchase price or fee associated with any conveyance of title or deed back to the equity seller will be calculated; and
(I) An explanation of the percentage of any equity recapture payment the equity seller is to receive if the equity seller does not exercise a right to receive back a conveyance of title or deed; and
(f) Contain, in immediate proximity to the space reserved for the equity seller’s signature, a notice in substantially the following form and printed in at least 14-point boldfaced type:
______________________________________________________________________________
NOTICE REQUIRED BY OREGON LAW
THIS IS AN IMPORTANT LEGAL CONTRACT.  CONTACT A LAWYER OR OTHER PROFESSIONAL ADVISER BEFORE SIGNING.

If you cancel, you must pay for services that were provided under this contract before cancellation and repay any money spent on your behalf under this contract. You have 60 days after cancellation to pay for the services and repay any money spent on your behalf. You must also pay any interest allowed by this contract, which may not exceed nine percent per year.
The law requires that this contract contain the entire agreement. You should not rely on any other written or oral agreement or promise.
______________________________________________________________________________
(2) An equity conveyance contract provision is void if the provision provides for an equity seller to:
(a) Waive any rights of the equity seller under ORS 646A.725 to 646A.750;
(b) Consent to jurisdiction for litigation or dispute resolution in a state other than Oregon;
(c) Consent to a choice of laws provision that applies the laws of a state other than Oregon;
(d) Consent to venue in a county other than the county in which the residential real property is located; or
(e) Pay any costs or fees that the equity purchaser or a person acting in association with the equity purchaser incurred to enforce the contract, other than court costs and filing fees incurred in a successful circuit court action.
(3) An equity conveyance may not be carried out using a power of attorney from the equity seller to the equity purchaser or a person acting in association with the equity purchaser. [2008 c.19 §11]
646A.740 Cancellation; effective date; rebuttable presumption of delivery; payment for services; form; sufficiency of notice; return of documents. (1) In addition to any other cancellation or rescission right, an equity seller may cancel an equity conveyance contract as provided under this section before the earlier of:
(a) Midnight of the third business day after the equity seller signs a document purporting to transfer an interest in the residence in foreclosure; or
(b) A foreclosure sale of the residence in foreclosure.
(2) If the equity seller gives a written notice of cancellation under this section by mail, the notice is effective upon the earlier of:
(a) Delivery to the physical address of the equity purchaser or settlement agent; or
(b) Actual receipt by the equity purchaser or settlement agent.
(3) If the equity seller gives a written notice of cancellation under this section by facsimile number or electronic mail, the notice is effective upon the earlier of:
(a) Delivery to the facsimile or electronic mail address of the equity purchaser or the settlement agent; or
(b) Actual receipt by the equity purchaser or settlement agent.
(4) Proof of a transmission by the equity seller to the facsimile number or electronic mail address of the equity purchaser or of the settlement agent creates a rebuttable presumption that the notice of cancellation was delivered to the facsimile number or electronic mail address of the equity purchaser or settlement agent at the time of transmission.
(5) An equity seller who cancels or breaches an equity conveyance contract under this section shall, no later than 60 days after the cancellation or breach, pay for any services provided in good faith under the contact prior to the cancellation or breach and repay any moneys paid or advanced under the contract by or on behalf of the equity purchaser. The equity seller shall also pay any interest stated in the equity conveyance contract, not to exceed nine percent per year.
(6) Failure of the equity seller to repay moneys as provided in subsection (5) of this section does not invalidate the cancellation of the equity conveyance contract.
(7) When both parties have signed the equity conveyance contract, the equity purchaser shall immediately provide the equity seller with a signed and dated copy of the contract and a cancellation form. The cancellation form must:
(a) Be in duplicate;
(b) Be on a separate sheet of paper attached to the contract;
(c) Be easily detachable; and
(d) Contain a statement in substantially the following form and be printed in at least 14-point boldfaced type:
______________________________________________________________________________
HOW TO CANCEL
IF YOU DECIDE NOT TO TRANSFER YOUR DEED OR TITLE, YOU MAY CANCEL THIS CONTRACT.

Date of Contract: _____
Your notice of cancellation must be received before midnight on: _____ (date).
To cancel the contract, deliver a signed and dated copy of this Notice of Cancellation, or write something saying you want to cancel, and deliver it to _________ (name of settlement agent) at _________ (address of settlement agent). You can cancel by fax or e-mail. Deliver any cancellation by fax to _________ or any cancellation by e-mail to_________.
If you cancel, you must pay for any services that were provided under the contract before you canceled and repay any money spent on your behalf under the contract. You have 60 days after cancellation to pay for the services and repay any money spent on your behalf. You must also pay any interest allowed under the contract, which may not exceed nine percent per year.
NOTICE OF CANCELLATION
TO: _________(name of settlement agent)
_________(address, fax and e-mail of settlement agent)
I cancel the contract. Please return all signed documents to me.
Date: _____
Your (homeowner’s) printed name and address:
_______________
Your (homeowner’s) signature:
_______________
______________________________________________________________________________
(8) Notwithstanding subsection (1)(a) of this section, the period during which the equity seller may cancel the equity conveyance contract does not commence until the equity purchaser has complied with subsection (7) of this section.
(9) A notice of cancellation under this section is sufficient, however expressed, if the notice indicates the intent of the equity seller to cancel the equity conveyance contract. The equity conveyance contract may not require the equity seller to use the notice of cancellation form described in subsection (7) of this section.
(10) No later than 10 days after receipt of a notice of cancellation given in accordance with this section, the equity purchaser shall return, without condition, any original deed, title and contract, and any other document of transfer signed by the equity seller. [2008 c.19 §12]
646A.745 Required and prohibited acts. (1) An equity purchaser shall:
(a) Prior to an equity seller signing an equity conveyance contract:
(A) Verify and be able to demonstrate that the equity seller has or will have a reasonable ability to pay for the subsequent reconveyance of the residential real property interest back to the equity seller as provided under the equity conveyance contract; or
(B) If the equity conveyance contract provides for a lease with an option to repurchase the residential real property, verify and be able to demonstrate that the equity seller has or will have a reasonable ability to make the lease payments and repurchase the property within the term of the option to repurchase.
(b) Arrange for the equity seller and the settlement agent to complete a settlement conference before the equity seller transfers any interest under the equity conveyance contract.
(c) Comply with the requirements of the federal Home Ownership and Equity Protection Act (15 U.S.C. 1639) and its implementing regulations for any equity conveyance in which the equity seller obtains a vendee interest in a contract for deed.
(d) Ensure that title to, or other interest in, the residential real property is timely reconveyed to the equity seller as provided under the terms of the equity conveyance contract.
(e) If a residential real property is resold within 24 months after the equity seller enters into an equity conveyance contract, pay the equity seller cash or consideration in an amount equal to at least 82 percent of the equity recapture payment from the resale no later than 15 days after the receipt of cash or consideration from or on behalf of the purchasers of the property.
(f) Timely record the memorandum of agreement required by ORS 646A.750.
(2) An equity purchaser may not:
(a) As part of an equity conveyance contract, enter into repurchase or lease terms that are commercially unreasonable or unfair to an equity seller, or engage in any other unfair conduct.
(b) Represent, directly or indirectly, that the equity purchaser is acting as a financial adviser or foreclosure consultant to the equity seller or otherwise is acting on behalf of the equity seller.
(c) Make a false representation regarding the equity purchaser’s possession of professional credentials that indicate knowledge or expertise regarding real property transactions.
(d) Represent, directly or indirectly, that the equity purchaser is assisting the equity seller in preventing a foreclosure, if the equity conveyance contract does not provide for the equity seller to completely redeem the residential real property and regain title.
(e) Directly or by implication make a statement or engage in conduct that is false, deceptive, misleading or likely to cause confusion or misunderstanding regarding an equity conveyance, including but not limited to a statement or conduct with regard to:
(A) The value of a residence in foreclosure;
(B) The amount of proceeds the equity seller would receive after a foreclosure sale;
(C) An equity conveyance contract term; or
(D) The equity seller’s rights or obligations incident to or arising out of the equity conveyance.
(f) Before the equity seller’s right to cancel an equity conveyance contract has expired:
(A) Record or cause to be recorded an instrument of conveyance or other document the equity seller signed;
(B) Transfer or purport to transfer any interest in the residential real property to any third party; or
(C) Encumber or purport to encumber any interest in the residential real property with any third party. [2008 c.19 §13]
646A.750 Rebuttable presumptions; accounting; bona fide purchaser; memorandum of agreement; form. (1) For purposes of determining whether an equity purchaser has violated ORS 646A.745 (1)(a), there is a rebuttable presumption that:
(a) An equity seller has or will have a reasonable ability to pay for a subsequent reconveyance of a residential real property if, on the date the equity seller signs the equity conveyance contract, the monthly payments projected for the equity seller’s primary housing expenses under the contract and monthly payments for regular principal and interest payments on other personal debt do not, in total, exceed 60 percent of the equity seller’s monthly gross income.
(b) The equity purchaser has failed to verify that the equity seller has a reasonable ability to pay for a subsequent reconveyance of a property if the equity purchaser has not obtained supporting documents other than a statement by the equity seller of assets, liabilities and income.
(2) If a property is resold within 24 months after an equity seller enters into an equity conveyance contract, at the time of making the equity recapture payment to the equity seller under ORS 646A.745 (1)(e), the equity purchaser shall provide the equity seller with a detailed accounting of the basis for the payment amount. The accounting shall include detailed documentation of the amounts subtracted by the equity purchaser from the resale price to determine the amount of the equity recapture payment.
(3) A bona fide purchaser that enters into a transaction with an equity seller or equity purchaser receives good title to the property, free and clear of:
(a) The rights of the parties to an equity conveyance contract or a memorandum of agreement; or
(b) Any cancellation of the equity conveyance contract.
(4) ORS 646A.725 to 646A.750 do not impose a duty on a property purchaser, settlement agent, title insurer or title insurance producer regarding the application of the proceeds of a resale of property by an equity purchaser.
(5) At the time of presenting an equity conveyance for recording, the equity purchaser shall present a memorandum of agreement for recording in the county where the residential real property is located. The memorandum of agreement must be signed by the equity purchaser and the equity seller, witnessed by a notary public and in substantially the following form:
______________________________________________________________________________
MEMORANDUM OF AGREEMENT
DATED: _________
SELLER NAME (print):
____________
PURCHASER NAME
(print): ____________
EXPIRATION DATE:_____, unless otherwise extended by written agreement between the parties.
LEGAL DESCRIPTION AND PROPERTY ADDRESS: ____________
TERMS OF
AGREEMENT: _________
TRUE AND ACTUAL CONSIDERATION
IS: ____________
SELLER SIGNATURE:
____________
PURCHASER SIGNATURE:
____________
______________________________________________________________________________ [2008 c.19 §14]
646A.755 Acts not precluded. ORS 646A.725 to 646A.750 do not preclude an equity seller from:
(1) Seeking to have a transfer of interest under an equity conveyance declared to be an equitable mortgage; or
(2) Asserting any claim against an equity purchaser for an equitable mortgage. [2008 c.19 §15]
646A.760 Civil action for damages; attorney fees and costs; limitation on commencement of action. (1) As used in this section, “equity seller” has the meaning given that term in ORS 646A.725.
(2) In addition to any action by the Attorney General under ORS 646.607 or any other cause of action, an equity seller may bring an action for damages incurred by the equity seller resulting from a violation of ORS 646A.725 to 646A.750.
(3) If a court finds that a defendant in an action under this section committed a violation of ORS 646A.725 to 646A.750 knowingly, in addition to any award of damages for other violations of ORS 646A.725 to 646A.750, the court shall award the equity seller three times the amount of the actual damages sustained by the equity seller as a result of the knowing violation.
(4) The court may award an equity seller prevailing in an action under this section reasonable attorney fees, costs and expenses. If a court finds that an equity seller brought an action under this section in bad faith or solely for purposes of harassment, the court may award a prevailing defendant reasonable attorney fees.
(5) An action under this section must be commenced within six years. [2008 c.19 §17]
(Penalties)
646A.765 Penalties. Violation of a provision of ORS 646A.702 to 646A.720 or 646A.725 to 646A.750 is a Class A misdemeanor. [2008 c.19 §18; 2011 c.597 §260]
GUARANTEED ASSET PROTECTION WAIVERS
Note: Sections 1 to 8 and 11, chapter 523, Oregon Laws 2015, provide:
Sec. 1. Definitions. As used in sections 1 to 7 of this 2015 Act:
(1) “Borrower” means an individual who enters into a finance agreement that is secured by a motor vehicle or who, in connection with purchasing or leasing a motor vehicle, incurs an obligation to pay money to a creditor under terms and conditions that are specified in a finance agreement.
(2) “Creditor” means:
(a) A person that:
(A) Permits another person to defer or to pay in installments an amount due under a finance agreement that is secured by a motor vehicle; or
(B) Otherwise extends credit to another person under a finance agreement that is entered into in connection with purchasing or leasing a motor vehicle; or
(b) An assignee of a person described in paragraph (a) of this subsection.
(3) “Evaluation period” means a period of at least 30 days after the date on which a borrower purchases a guaranteed asset protection waiver during which, if the borrower did not receive a benefit from the guaranteed asset protection waiver, the borrower may cancel the guaranteed asset protection waiver and receive a full refund of the purchase price.
(4) “Finance agreement” means a contract or other agreement that is evidence of a borrower’s obligation to pay money to a creditor and that specifies the terms and conditions under which the borrower must repay the obligation.
(5) “Guaranteed asset protection waiver” means a contractual provision of or an addendum to a finance agreement that is secured by a motor vehicle under the terms of which a creditor agrees to waive the creditor’s right to collect all or part of an amount due from a borrower under the terms of the finance agreement or to release a borrower from an obligation to pay the creditor an amount due under a finance agreement if the motor vehicle:
(a) Suffers physical damage that is equivalent to a total loss; or
(b) Is stolen and is not recovered.
(6) “Insurer” means an insurer that is licensed, registered or otherwise authorized to transact insurance in this state.
(7) “Motor vehicle” means a self-propelled or towed vehicle that is designed for personal or commercial use, such as an automobile, truck, motorcycle, recreational vehicle, all-terrain vehicle, snowmobile, camper, boat, personal watercraft or a trailer for a motorcycle, boat, camper or personal watercraft.
(8) “Reimbursement insurance policy” means an insurance policy under the terms of which an insurer reimburses a creditor for an amount the creditor must waive under a guaranteed asset protection waiver. [2015 c.523 §1]
Sec. 2. Applicability of Insurance Code; statement of costs; exemptions. (1)(a) A guaranteed asset protection waiver is not insurance and is not subject to the provisions of the Insurance Code. A person, other than an insurer, that sells a guaranteed asset protection waiver in compliance with sections 1 to 7 of this 2015 Act does not become subject to the Insurance Code by reason of the sale.
(b) Notwithstanding any other provision of law, any cost for a guaranteed asset protection waiver into which a borrower enters, whether in compliance with the Truth in Lending Act, 15 U.S.C. 1601 et seq., and regulations promulgated under the Truth in Lending Act, or not, must be stated separately in the finance agreement and is not a finance charge or interest.
(2) Sections 1 to 7 of this 2015 Act do not apply to:
(a) An insurance policy that an insurer offers under the provisions of the Insurance Code;
(b) A debt cancellation contract or debt suspension agreement offered in compliance with 12 C.F.R. 37.2 or 12 C.F.R. part 721, both as in effect on the effective date of this 2015 Act [January 1, 2016]; or
(c) A state bank, as defined in ORS 706.008 or a credit union, as defined in ORS 723.008. [2015 c.523 §2]
Sec. 3. Required disclosures; cancellation provisions; effect on motor vehicle purchaser’s credit. A person may not sell a guaranteed asset protection waiver in connection with a sale of a motor vehicle that is used for personal, family or household purposes unless, at the time of the sale:
(1) The person discloses, in writing and in plain and easily understandable language:
(a) The name, address and other contact information for:
(A) The person that sells the guaranteed asset protection waiver;
(B) The creditor, if different; and
(C) Any other person that is a party to or has duties, responsibilities or other obligations under the terms of the guaranteed asset protection waiver.
(b) The purchase price of the guaranteed asset protection waiver.
(c) The terms and conditions of the guaranteed asset protection waiver, including but not limited to:
(A) Conditions under which the creditor will waive or decline to waive all or a portion of the obligation that remains under a finance agreement;
(B) The methodology for determining the amount the creditor will waive; and
(C) The length of the evaluation period.
(d) The identity, location and contact information for the person to which the borrower must submit a claim for benefits or a refund under the guaranteed asset protection waiver and the procedure the borrower must follow to submit the claim.
(e) Conditions under which the borrower may cancel the guaranteed asset protection waiver and the procedure the borrower must follow to cancel, both during the evaluation period and after the evaluation period expires, if the terms of the guaranteed asset protection waiver permit cancellation after the evaluation period expires.
(f) The formula or methodology that will apply to calculating the amount of any refund available under the terms and conditions of the guaranteed asset protection waiver if:
(A) The borrower cancels the guaranteed asset protection waiver during the evaluation period or, if permitted under the terms and conditions of the guaranteed asset protection waiver, after the evaluation period expires; or
(B) The finance agreement is terminated early.
(2) The guaranteed asset protection waiver provides that the borrower may cancel the guaranteed asset protection waiver during the evaluation period for a full refund of the purchase price if the borrower did not receive any benefits.
(3) The creditor states clearly, and the terms of the guaranteed asset protection waiver provide in writing, that purchasing a guaranteed asset protection waiver is not required in order to obtain credit or complete a purchase or lease of a motor vehicle and does not affect the terms and conditions of credit that a borrower obtains from a creditor. [2015 c.523 §3]
Sec. 4. Determination of amount of waiver; waivers that are required and waivers that are not required. (1) A guaranteed asset protection waiver must determine the amount that a creditor waives under the terms of the guaranteed asset protection waiver in accordance with the following methods:
(a) If primary motor vehicle insurance or third party liability insurance covers the amount of a total loss of the motor vehicle, the creditor shall waive the difference between:
(A) The primary insurer’s or the third party’s determination of the motor vehicle’s actual cash value as of the date of the total loss; and
(B) The amount the borrower owes under the finance agreement.
(b) If primary motor vehicle insurance or third party liability insurance does not cover a total loss of the motor vehicle, if an insurer that issued the primary motor vehicle insurance or the third party liability insurance is insolvent or if the primary motor vehicle insurance or third party liability insurance have stated values or limits that are less than the actual cash value of the insured motor vehicle, the creditor shall waive the difference between:
(A) The value of the motor vehicle immediately before the loss or theft of the motor vehicle, as shown in a published and generally available regional or national guide to motor vehicle values or from the best available equivalent information, as specified in the guaranteed asset protection waiver; and
(B) The amount the borrower owes under the finance agreement.
(2)(a) A guaranteed asset protection waiver need not require a creditor to waive:
(A) A motor vehicle insurance policy deductible;
(B) Delinquent, missed or deferred payments;
(C) Late fees or charges;
(D) Unearned finance charges, interest or lease charges;
(E) Unearned rental payments;
(F) Taxes;
(G) Refundable items that include, but are not limited to:
(i) Charges associated with service contracts;
(ii) Prepaid taxes and fees; or
(iii) Credit insurance; or
(H) Other similar items that the guaranteed asset protection waiver specifies.
(b) A guaranteed asset protection waiver may specify limits on the amount a creditor must waive based on a loan to value ratio, a maximum term, a maximum waiver amount or other limits.
(3) A guaranteed asset protection waiver may require a creditor to waive all or a portion of a motor vehicle insurance policy deductible. [2015 c.523 §4]
Sec. 5. Cancellation and expiration; refunds; effect of sale, assignment or transfer. (1)(a) A guaranteed asset protection waiver may provide that a borrower may cancel the guaranteed asset protection waiver after the evaluation period expires or that the guaranteed asset protection waiver expires if the finance agreement terminates early. If the guaranteed asset protection waiver permits a borrower to cancel as provided in this subsection and the borrower did not receive a benefit, the borrower is entitled to a pro rata refund of the unearned portion of the purchase price.
(b) A borrower shall apply in writing to the person identified in the guaranteed asset protection waiver for a refund of all or a portion of the purchase price of the guaranteed asset protection waiver within 90 days after cancellation if the borrower cancels the guaranteed asset protection waiver. If the guaranteed asset protection waiver is canceled as a result of the termination of the finance agreement, then any cancellation refund shall be provided without requiring the borrower to apply or submit a claim for the refund.
(2) The terms of the guaranteed asset protection waiver may provide that if the borrower financed the purchase of the guaranteed asset protection waiver and cancels the guaranteed asset protection waiver, if the borrower defaults on the obligation set forth in the finance agreement, if the creditor repossesses the motor vehicle that secures the obligation or if the finance agreement terminates for a reason other than the borrower’s satisfaction of the obligation set forth in the finance agreement, any refund due as a consequence of the termination may be:
(a) Paid directly to the creditor; or
(b) Applied to any outstanding balance on the obligation set forth in the finance agreement, unless the borrower has paid the obligation in full. If the borrower has paid the obligation in full, the creditor shall pay to the borrower the refund.
(3) Unless canceled as provided in this section, a guaranteed asset protection waiver remains in effect as part of the finance agreement for the term set forth in the guaranteed asset protection waiver even if the finance agreement is sold, assigned or otherwise transferred. [2015 c.523 §5]
Sec. 6. Reimbursement insurance policies for guaranteed asset protection waivers. (1)(a) A creditor other than a person that sells a guaranteed asset protection waiver in connection with a retail sale of a motor vehicle may insure a guaranteed asset protection waiver with a reimbursement insurance policy.
(b) A person that sells a guaranteed asset protection waiver in connection with a retail sale of a motor vehicle shall insure the guaranteed asset protection waiver with a reimbursement insurance policy that meets the requirements set forth in subsection (2) of this section.
(c) A lessor that leases a motor vehicle does not need to insure a guaranteed asset protection waiver that the lessor sells in connection with the lease.
(2) A reimbursement insurance policy for a guaranteed asset protection waiver must state:
(a) The terms of the obligation the insurer has to reimburse the creditor for amounts the creditor must waive under the terms of the guaranteed asset protection waiver;
(b) That the insurer’s obligation to reimburse the creditor extends to the creditor’s assignee or any person to which the creditor sells or transfers the finance agreement or the guaranteed asset protection waiver that the reimbursement insurance policy covers;
(c) That the reimbursement insurance policy remains in effect until canceled in accordance with applicable provisions of the Insurance Code; and
(d) That a cancellation of the reimbursement insurance policy does not affect an insurer’s obligation under the reimbursement insurance policy for guaranteed asset protection waivers that the insured sold, and for which the insurer received premium payments, before the date on which the reimbursement insurance policy was canceled.
(3) A person that sells a guaranteed asset protection waiver in connection with a sale or lease of a motor vehicle shall report to any insurer that has issued a reimbursement insurance policy to the person the number of guaranteed asset protection waiver sales and any other details the insurer requires under the terms of the reimbursement insurance policy and shall timely forward to the insurer all funds due under the terms of the reimbursement insurance policy. [2015 c.523 §6]
Sec. 7. Fiduciary responsibilities. (1) A person that is subject to sections 1 to 7 of this 2015 Act shall act in a fiduciary capacity with respect to funds the person receives or holds for the benefit of another person.
(2) A person that sells a guaranteed asset protection waiver in connection with a retail sale of a motor vehicle may not:
(a) Charge more for the guaranteed asset protection waiver than five percent of the amount the borrower finances under a finance agreement; or
(b) Vary the benefits, terms, conditions or price of the guaranteed asset protection waiver on account of a borrower’s race, sex, sexual orientation, income or education. [2015 c.523 §7]
Sec. 8. Unlawful practices. A violation of a provision of sections 1 to 7 of this 2015 Act is an unlawful practice under ORS 646.608. [2015 c.523 §8]
Sec. 11. Sunset. Sections 1 to 8 of this 2015 Act are repealed on January 2, 2020. [2015 c.523 §11]
MISCELLANEOUS
646A.800 Late fees on delinquent cable service accounts; amount; disclosure; notice. (1) As used in this section:
(a) “Cable service” means:
(A) One-way transmission to subscribers of a video programming service;
(B) Two-way interactive service delivered over a cable system; or
(C) Any communication with subscribers necessary for the selection and use of video programming or interactive services.
(b) “Cable system” means a facility consisting of closed transmission paths and associated signal operation, reception and control equipment that is designed to provide cable service.
(2)(a) A seller of cable service may assess a late fee on delinquent subscriber accounts held by the seller that have an unpaid balance of $10 or more.
(b) A late fee assessed under subsections (2), (3) and (4) of this section shall not exceed five percent of the unpaid balance or $6, whichever is greater.
(3) The seller of cable service shall conspicuously disclose on each statement or invoice the terms under which a late fee may be assessed, including the amount of the fee.
(4) Prior to assessing a late fee under subsections (2), (3) and (4) of this section, the seller shall give written notice to the subscriber. The notice shall conspicuously indicate the amount of the unpaid balance, an address where payment may be made, the date on which the late fee will be imposed and the amount of the late fee. The notice shall be mailed to the subscriber’s last-known billing address as shown in the seller’s records. The notice shall be mailed at least 10 days prior to the date on which the late fee will be assessed. The late fee may not be assessed earlier than 27 days after the due date for the unpaid balance. [Formerly 646.649]
646A.801 Termination of residential cable service or residential telecommunications service for certain persons. (1) As used in this section:
(a) “Personal representative” has the meaning given that term in ORS 111.005.
(b) “Residential cable service” means the transmission of any communication to a residential customer of the service for the purpose of delivering video content to the customer.
(c) “Residential telecommunications service” means the transmission of any communication between a residential customer of the service and any other individual through the use of a communication system established and maintained by a radio common carrier or a telecommunications utility, both as defined in ORS 759.005.
(2) An individual in a hospice program, or the next of kin or personal representative of an individual who has died, may terminate, without penalty, a residential cable service or a residential telecommunications service provided pursuant to an existing contract.
(3) For purposes described in subsection (2) of this section, a provider of a residential cable service or a residential telecommunications service may require an individual in a hospice program or the next of kin or personal representative of an individual who has died to submit a document establishing that the individual is in a hospice program or has died.
(4) A termination of service under subsection (2) of this section is effective on the date on which the provider of the service first receives notice that the individual is in a hospice program or has died.
(5) The Oregon Health Authority may impose a civil penalty, not to exceed $1,000, for violation of this section. Civil penalties imposed under this section shall be imposed in the manner provided by ORS 183.745. All moneys recovered under this section shall be paid into the State Treasury and credited to the General Fund. [2015 c.181 §2]
Note: Definitions in 443.850 apply to 646A.801.
Note: 646A.801 was added to and made a part of 443.850 to 443.869 by legislative action. See Preface to Oregon Revised Statutes for further explanation.
646A.803 Contest and sweepstakes solicitations; required disclosures; prohibited representations. (1) As used in this section:
(a) “Contest” means a procedure for awarding a prize in which the outcome depends at least in part on the skill of the contestant. “Contest” includes any competition in which a person is required to purchase anything, pay anything of value or make a donation in order to participate. “Contest” also includes a competition that is advertised in a way that creates a reasonable impression that a payment of anything of value, purchase of anything or making a donation is a condition of winning a prize or competing for or obtaining information about a prize.
(b) “Sweepstakes” means a procedure for awarding a prize that is based on chance. “Sweepstakes” includes any such procedure in which a person is required to purchase anything, pay anything of value or make a donation as a condition of winning a prize or of receiving or obtaining information about a prize. “Sweepstakes” also includes any such procedure that is advertised in a way that creates a reasonable impression that a payment of anything of value, purchase of anything or making a donation is a condition of winning a prize or receiving or obtaining information about a prize.
(c) “Clearly and conspicuously” means the message is conveyed in a manner that is reasonably apparent to the audience to whom it is directed. In order for a message to be considered clear and conspicuous, it shall, at a minimum:
(A) Not contradict or substantially alter any terms it purports to clarify, explain or otherwise relate to; and
(B) In the case of printed solicitations:
(i) Be in close proximity to the terms it purports to clarify, explain or otherwise relate to; and
(ii) Be of sufficient prominence in terms of placement, font or color contrast as compared with the remainder of the solicitation so as to be reasonably apparent to the audience to whom it is directed.
(2) A person engages in an unlawful practice when, in the course of the person’s business, vocation or occupation, the person uses the United States mail to solicit participation in a contest and the person does not clearly and conspicuously disclose in the solicitation:
(a) The maximum number of rounds or levels, if the contest has more than one round or level;
(b) The date the final winner will be determined;
(c) The maximum total cost the final winner will have paid to the sponsor to participate in the contest;
(d) Whether the final winner must purchase or pay anything of value to a person other than the sponsor if purchasing or paying is a condition of eligibility;
(e) If the contest involves multiple rounds of increasing difficulty, an example illustrative of the last determinative round or a statement that subsequent rounds will be more difficult;
(f) If the contest is judged by someone other than the sponsor, the identity of or description of the qualifications of the judges;
(g) The method used in judging; and
(h) The name and address of the sponsor or the sponsor’s agent.
(3) A person engages in an unlawful practice when, in the course of the person’s business, vocation or occupation, the person uses the United States mail to solicit participation in a sweepstakes and does not clearly and conspicuously disclose in the solicitation:
(a) The odds of winning in Arabic numerals, except that if the odds of winning depend on the number of entries received, a statement to that effect will be deemed sufficient;
(b) The name and address of the sponsor or the sponsor’s agent, consistently stated wherever it is used; and
(c) The procedure for entry without purchase.
(4) A person engages in an unlawful practice when, in the course of the person’s business, vocation or occupation, the person solicits participation in a contest or sweepstakes:
(a) By using the United States mail to represent that a person has been selected to receive or has won a particular prize, when that is not the case; or
(b) By using the United States mail to represent that a person is a winner, is a finalist, is in first place or is otherwise in a limited group of persons with an enhanced likelihood of winning or receiving a prize, when more than 25 percent of the persons receiving the solicitation have the same chance of winning. [Formerly 646.651]
646A.806 Website with photographs and information about arrested persons; requirement to remove photographs and information upon request; penalty. (1) A person shall comply with subsection (2) of this section if the person:
(a) Operates a website that disseminates photographic records of arrested individuals made by law enforcement agencies pursuant to ORS 181A.160 or otherwise as part of routinely documenting an arrest; and
(b) Charges a fee for the removal from the website of a photograph referred to in paragraph (a) of this subsection and the name and personal information of the individual associated with the photograph.
(2) A person described in subsection (1) of this section shall remove the photograph and related name and personal information from all websites owned or controlled by the person without charging a fee within 30 days of the date of a request to remove the photograph if the request:
(a) Is made in writing; and
(b) Contains written documentation that all charges stemming from the arrest for which the photograph was made:
(A) Were resolved through acquittal or otherwise without a conviction;
(B) Were reduced to violations; or
(C) Following conviction, were expunged or set aside pursuant to court order.
(3) For purposes of this section, paper or electronic copies of official court records or law enforcement records constitute written documentation.
(4) A person who violates subsection (2) of this section commits an unlawful practice under ORS 646.608. [2013 c.330 §1]
646A.808 Obtaining personal information by false representation via electronic media. (1) As used in this section, “personal information” has the meaning given that term in ORS 646A.602.
(2)(a) A person may not use a website, electronic mail message, text message or other electronic means to solicit, request or otherwise induce another person to provide personal information by representing to the other person directly, indirectly or by implication that the person is a third person, without the third person’s knowledge, authorization and consent.
(b) Paragraph (a) of this subsection does not apply to:
(A) A law enforcement officer or law enforcement agency that is engaged in performing the officer’s or agency’s official duties; or
(B) An individual who is authorized by law to conduct a lawful investigation, while the individual is conducting the lawful investigation.
(3) Violation of subsection (2) of this section is an unlawful trade practice under ORS 646.607 that is subject to enforcement under ORS 646.632. [2015 c.128 §1]
646A.810 Patent infringement claim made in bad faith; enforcement as unlawful practice; limitations; rules. (1) As used in this section:
(a) “Affiliate” means a person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with another person.
(b) “Complaint” means a document or a copy of a document that a person or the person’s affiliate:
(A) Files with a court, an arbitration panel or another body with power to adjudicate a dispute over patent rights; and
(B) Serves, sends or otherwise communicates to a recipient in order to commence a judicial, arbitration or administrative proceeding for patent infringement against the recipient.
(c) “Demand” means an oral or written communication that alleges, asserts or claims that a recipient has infringed or has contributed to infringing a patent or the rights that a patentee has under a patent or has granted to an assignee or a licensee.
(d) “Patentee” has the meaning given that term in 35 U.S.C. 100, as in effect on March 3, 2014.
(e) “Recipient” means a person that receives a demand and:
(A) Resides in this state;
(B) Maintains a place of business or transacts business within this state; or
(C) Is a body, officer or agency acting under the statutory authority of this state or under the legal authority of a political subdivision of this state.
(2) A person or the person’s affiliate may not communicate a demand, or cause another person to communicate a demand, to a recipient if in the demand the person or the person’s affiliate alleges, asserts or claims in bad faith that the recipient has infringed or contributed to infringing a patent or the rights that a patentee has, or has granted to an assignee or licensee, under the patent.
(3) If a prosecuting attorney receives one or more accusations from a recipient or recipients that a person or the person’s affiliate has violated subsection (2) of this section, the prosecuting attorney may execute and serve an investigative demand on the person or the person’s affiliate under ORS 646.618 and may take action against the person or the person’s affiliate under ORS 646.632 for engaging in an unlawful trade practice.
(4) A court may consider one or more of the following conditions as evidence that a person or the person’s affiliate has, in bad faith, alleged, asserted or claimed an infringement of a patent or rights that a patentee, assignee or licensee has under a patent:
(a) The demand required the recipient to respond or to pay a license or other fee within a period of time that a reasonable person would consider to be unreasonably short.
(b) The demand did not include:
(A) The patent number for the patent that the person or the person’s affiliate alleges, asserts or claims that the recipient infringed;
(B) Current and accurate contact information for the patentee, assignee or licensee, including a name, address and phone number or other contact information that would enable the recipient to identify and communicate with the patentee, assignee or licensee; and
(C) A statement of facts, together with an explanation or a description of the facts that would enable a reasonable person to understand the basis of the allegation or claim that the recipient has infringed the patent or the rights of the patentee, assignee or licensee under the patent.
(c) The person or the person’s affiliate failed to provide the information described in paragraph (b) of this subsection to the recipient within a reasonable time after the recipient requested the information.
(d) The person or the person’s affiliate, before communicating the demand:
(A) Failed to compare the claims in the patent to the features or specifications of the recipient’s product, service or technology that the person or the person’s affiliate alleges, asserts or claims is an infringement of the patent or the rights of the patentee, assignee or licensee under the patent; or
(B) Conducted the comparison described in subparagraph (A) of this paragraph, but in a way that did not enable the person or the person’s affiliate to specifically identify the infringing features or specifications of the recipient’s product, service or technology.
(e) The person or the person’s affiliate offered to license the patent for an amount that a reasonable person with knowledge of the market value of a license for the invention that is covered by the patent would consider unreasonable.
(f) The person or the person’s affiliate knew or should have known at the time the person or the person’s affiliate communicated the demand that the allegation, assertion or claim of infringement was without merit or was deceptive.
(g) The person or the person’s affiliate previously communicated a demand or filed a complaint based on the same or a similar allegation, assertion or claim and:
(A) The demand did not include the information described in paragraph (b) of this subsection; or
(B) A court, an arbitration panel or another body with power to adjudicate a patent dispute dismissed the complaint as frivolous or without merit at any point during a proceeding before the court, the panel or the body.
(h) The person or the person’s affiliate engaged in other conduct that the Attorney General by rule identifies as evidence of alleging, asserting or claiming an infringement in bad faith.
(5) A court may consider one or more of the following conditions as evidence that a person or the person’s affiliate has, in good faith, alleged, asserted or claimed an infringement of a patent or rights that a patentee, assignee or licensee has under a patent:
(a) The demand does include the information described in subsection (4)(b) of this section.
(b) The person or the person’s affiliate provided the information described in subsection (4)(b) of this section to the recipient within a reasonable time after the recipient requested the information, if the demand did not include the information.
(c) The person or the person’s affiliate, before communicating the demand, attempted to establish that an infringement had occurred by comparing the claims in the patent to the features or specifications of the recipient’s product, service or technology that the person or the person’s affiliate believes is an infringement of the patent, or the rights of the patentee, assignee or licensee under the patent, and specifically identifying the infringing features or specifications of the recipient’s product, service or technology.
(d) The person or the person’s affiliate, after conducting the comparison described in paragraph (c) of this subsection, attempted in good faith to negotiate a settlement or a license for the patent with the recipient.
(e) The person or the person’s affiliate has made a substantial investment in using or prosecuting the patent or in producing or selling a product, service or technology covered by the patent.
(f) The person or the person’s affiliate is:
(A) Named in the patent as an inventor or an assignee of the inventor;
(B) An institution of higher education; or
(C) An organization that an institution of higher education owns or is affiliated with and that has as the organization’s principal purpose the transfer of technology from the institute of higher education.
(g) The person or the person’s affiliate has:
(A) Previously and successfully enforced the patent, or the rights the patentee, an affiliate or a licensee has under the patent, before a court, an arbitration panel or another body with power to adjudicate a patent dispute; and
(B) Otherwise demonstrated integrity and good faith in business practices related to the patent or previous attempts to enforce the patent or the rights the patentee, an assignee or a licensee has under the patent.
(h) The person or the person’s affiliate engaged in other conduct that the Attorney General by rule identifies as evidence of alleging, asserting or claiming an infringement in good faith.
(6) A violation of subsection (2) of this section is an unlawful practice under ORS 646.608 that is subject to an action under ORS 646.638. Notwithstanding the definition of “person” in ORS 646.605, a recipient is a person for the purpose of bringing an action as a plaintiff under ORS 646.638.
(7) This section does not limit or affect:
(a) A right that this state, a political subdivision of this state, an agency, officer, employee or agent of this state or a political subdivision of this state or any other person may have with respect to a patent or rights granted under a patent; or
(b) Any remedy for patent infringement that a court, an arbitration panel or another body with power to adjudicate a dispute over patent rights may grant to this state, a political subdivision of this state or an agency, officer, employee or agent of this state or a political subdivision of this state or any other person.
(8) The Attorney General may adopt rules necessary to implement the provisions of this section. [2014 c.19 §2]
Note: 646A.810 was added to and made a part of 646.605 to 646.652 by legislative action. See Preface to Oregon Revised Statutes for further explanation.
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